DLA appeal hearing - can drive so can cook a main meal

For those not familiar, many women who are diagnosed with breast cancer and subsequently have an operation have lymph nodes removed from their upper chest/arm area.  This normally significantly impairs the use of the arm.  This often leads to an award of DLA LRC via the cooking test, although decisions are notoriously inconsistent and it seems impossible to get this from a tribunal.

Recently, I assisted a client to appeal a DLA decision on this basis.  The appeal was refused and the following paragraph was included in the statement of reasons:

‘*** indicated that she still had problems with using a tin opener and chopping vegetables and lifting pans.  However, the Tribunal noted that *** had been driving since June of 2010 and taking into account the manual dexterity involved in driving, the Tribunal was satisfied that if *** had chosen to do so that she would have been able to peel and chop vegetables: however, her choice was to use frozen vegetables to make soup.’

We didnt have much medical opinion to back my client’s case up, apart from a questionnaire completed by a nurse stating that my client could potentially have difficulties cooking, so the client’s testimony was crucial, but she wasn’t asked in detail about the manner in which she drives a car and so I think it’s stretching things to equate the 2 activities.

What do people think?  Has anyone come across this reasoning before?  Could this be grounds to take the decision to upper tribunal?  What do people think?

Check out the following case law;

R(DLA)2/2/05(CDLA/16702004)
CDLA/1572/2005
CDLA/722/94
CDLA/14601/1996
CDLA/4174/2006

What I’d like to know is how is the force and grip strength used to peel a potato say alike that of steering a car.

If it is the same then I’d say you’re doing one of them wrong.

IME A tribunal has never agreed on this point though.

Thanks for the caselaw Mick. 

Very useful.

I just worry about the amount of people who drive cars who possibly shouldn’ t . I recently interviewed an 86 year old man who had only recently lost his licence when he asked his consultant if he could still drive-blind in one eye and using a magnifying glass with the other to read and problems judging distances. He says the consultant stood up and waved her arms about!!!

In my opinion the two are very different as driving involves having a good range of movement in your upper body (reversing, coming in at a junction, etc.) but not necessarily strength in your arms/hands especially if you’re driving an automatic. If her upper arm hurts arguably she wouldn’t be able to lift and carry hot pot and pans safely or bend down as if to take something heavy out of the oven or reach up to a tall cupboard for example. I would argue that the type of muscles and movements involved in food preparation and driving are very different.

I have at various times had a frozen shoulder, a broken rib, and a sprained wrist, each of which made turning even a car with power steering rather painful, especially tight manoeuvering in say a car park. None of them affected my ability to cook, though I had to be careful lifting pans with the sprained wrist.

I don’t think you can generalise. You need to be able to identfy the movements which are made difficult or painful by any particular condition, and distinguish them from other actions which are not affected.

The cooking test is being taken very literally by some tribunals. A Client with severe arthritis and wrist supports argued he couldnt cook a meal as he would be unable to manage boiling pans, and also he had problems with standing to monitor/prepare said meal.
The judge dismissed this part of the cooking test by saying he could get a perching stool, put the empty pans on his cooker, fill jug with cold water and fill empty pan, place steak on a frying pan and then turn hobs on to cook. Once finished he could use tongs to “safely” take steak and vegetables out of the pans and then move to nearby plate, therefore he is able to cook a meal safely for one.
To me this contravenes the spirit of the cooking test as it is a hypothetical test as to how you are affected by your disabilities. The inability to use tin openers, bend to use ovens or carry pans was disregarded by this particular chairman.
We did win LRC though as his condition meant he couldnt chop or peel the vegetables in the first place.

The “cooking test” is the most frustrating aspect of most DLA tribunals I come across. It appears to have been transformed, in the eyes of many, to an ability to peel a small potato and a carrot, and put a piece of fish or meat in a pan. I have pointed out that this certainly doesn’t constitute a reasonable main daily meal as far as I am concerned and that, alternatively, you could probably chuck everything in a pan, leave it on for an hour (or two, if you wanted a more complete mush), and everything would be “cooked”. Perhaps tribunal members should be required to only eat the main meal that they think the test involves for a few weeks - no gravy, sauces, variety. Maybe then they would start to actually consider the case law properly and think about what a “labour intensive reasonable main daily meal for one” actually involves.

As to driving, I don’t think you can categorically say it points one way or another. I habitually drive without gripping the steering wheel or gear stick (and no, I know I shouldn’t steer with one finger on the wheel, but that’s power assisted steering for you). However, some aspects of driving do require a fair degree of grip, ability to react to sudden circumstances and concentration so it is reasonable that questions about driving form part of the tribunal’s standard approach, in the same way that a host of other activities may be relevant.

So Sovietleader has similar experiences to the ones i described. I thought it was just me!
I wonder who has directed the chairmen this way and if this is a legal interpretation of the cooking test. One DLA adviser from Blackpool told a client of mine (verbally) that he could cook a meal as he had a microwave. I wish i could have proven that this conversation took place as it was a general enquiry about entitlement and the DBC didnt take my clients details, so it wouldnt have been recorded. Bugger!

At tribunals I often quote from Moyna, Lord Hoffman’s dictum about the cooking test being a thought process designed to calibrate the severity of disability.  One time after I did so a salaried chair turned to me with a smile and said “yeees! I’ve never really got that.  Lord Hoffman wouldn’t know a cooker if he saw one”.  That was an amusing moment.  I think he had in mind Lord Hoffman’s comments in the decision about having a wife to cook, or dining at the Savoy.  Tribunal awarded LR Care on cooking test which is all we asked for.  An enjoyable day out for all I thought.  Or is it just me?